The Common Cause brief argues that the equal protection clause of the Fourteenth Amendment requires that state legislative districts, like congressional districts, be apportioned based on equal numbers of people – a fundamental principle of representative government. Indeed, the text of the Fourteenth Amendment itself guarantees equal protection of the laws to persons, not only citizens or electors. The Court ruled 8-0 that states are allowed to count total population. The brief illustrates how a ruling in favor of the appellants would unsettle the equal protection doctrine:
It would mean that the legislatures of every state are unconstitutionally apportioned, requiring that both houses of those state legislatures be reapportioned based on estimates of registered or eligible voters, which is subject to arbitrariness and the abuse of perpetuating underrepresentation. It would also create an indefensible situation in which states would be required by Article I, Section 2 to use total population as the basis for the redistricting of congressional districts, but be prohibited by the Equal Protection Clause from using the same standard when redistricting state legislative districts. Finally, it would break the structural link between the right of every person to equal protection under the laws enacted by the state legislature and the right of every person subject to those laws to equal representation in the houses of that legislature.
Common Cause is represented by Emmet J. Bondurant and Jeremy D. Farris, of Bondurant, Mixon & Elmore, LLP. Emmet Bondurant is a nationally recognized trial attorney with more than 45 years of experience, including having argued the landmark redistricting case Wesberry v. Sanders before the U.S. Supreme Court in 1963. In Wesberry, the Supreme Court definitively established that the Constitution requires congressional districts be drawn counting all people.